JOEL EKELEME IDIKA -VS- MICHAEL OKPARA UNIVERSITY OF

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP HONOURABLE JUSTICE I. S. GALADIMA

Dated: 16^th July, 2019 SUIT NO: NICN/OW/69/2017

Between:

JOEL EKELEME IDIKA CLAIMANT

AND

MICHAEL OKPARA UNIVERSITY OF AGRICULTURE,

UMUDIKE

GOVERNING COUNCIL MOUA UMUDIKE DEFENDANTS
VICE CHANCELLOR, MOUA UMUDIKE

REPRESENTATION:

G.O. AIGBOMIAN; M.U. EHONOR FOR THE CLAIMANT.
DEFENDANTS – UNREPRESENTED.

JUDGMENT:

This Claimant was purportedly employed by the 1^st Defendant on the 19/2/2016 as a Senior Staff on permanent appointment basis and as regulated by the 2015 Conditions of Service of the 1^st Defendant. However, on 22/8/2017, he received a letter from the Defendants suspending his offer of permanent employment without adhering to the due process and rule of law. He accordingly wrote through his lawyer to the Defendants to rescind the decision suspending him and to recall, reinstate, and pay all his outstanding salaries and allowances. Upon failure to comply with the demands, the Claimant filed this suit by way of an amended writ of complaint on the 17/4/2018, the subject matter of which, claims against these Defendants jointly and or severally as follows:

A declaration that the Claimant’s employment/service with the 1^st Defendant is an employment with statutory flavor, regulated by the Federal University of Agriculture Act no 48 of 1992, other subsidiary legislations/instruments and can only be determined in accordance with the applicable laws.

A declaration that the purported suspension of offer of permanent appointment of the Claimant video letter ref. MOUAU/PASM/SS/2876/Vol. 1 dated 15/8/2017 is contrary to the provisions of the Michael Okpara University of Agriculture, Umudike Conditions of Service for Senior Staff 2015, and therefore unlawful, null and void and of no effect whatsoever.
An order of Court setting aside the unlawful and purported letter of suspension of offer of permanent appointment of the Claimant’s service/employment with the 1^st Defendant ref. MOUAU/R/PASM/SS/2876/Vol. 1 dated 15/8/2017.

An order or mandatory injunction compelling the Defendants to reinstate and restore the Claimant to his position as Assistant Lecturer in the Department of Banking and Finance of the 1^st Defendant.

The sum of N612,222.80 being arrears of salaries and allowances owed the Claimant by the 1^st Defendant.

N20,000,000.00 as General damages.

An order of perpetual injunction restraining the Defendants, their agents, privies, and servants from further suspending or terminating or compulsorily retiring or tampering with the Claimant’s appointment/employment with the 1^st Defendant on account of this suit.

This cause was first mentioned before my brother Arowosegbe, J on 6/2/2018 and was adjourned severally without any further action until it came before me on the 6/5/2019 when the Claimant Counsel was granted leave to open his cause. On that day, the Defendants’ Counsel on record, W. O. Aguguo had stated that the Defendants were not interested in this suit and permitted him to proceed. Consequently, the Claimant testified as a sole witness on his behalf and tendered a total of 7 exhibits lettered C1 to – C7. They are:

Exhibit C 1 – Offer of Appointment dated 19/2/2016;
Exhibit C 2 – Federal University of Agriculture Act No. 48 of 1992;
Exhibit C 3 – Suspension of Offer of Permanent Appointment letter dated 15/8/2017;
Exhibit C 4 – Staff Nominal roll of 2018 ;
Exhibit C 5 – MOUAU Conditions of Service for a Senior Staff 2015;
Exhibit C 6 – Letter written by the Claimant to the Registrar of the 1^st Defendant dated 8/9/2017;
Exhibit C 7 – Pre action notice dated 4/10/2017;

The Defendants were duly served with the processes in this suit on the 4/1/2018 and given several hearing notices to defend the suit. They however elected not to enter any memorandum of appearance or any defense whatsoever. However, a Counsel, one W. O. Aguguo, Esq. cross examined the CW 1 — the only witness in this suit — who testified on the 16/5/2019, purportedly on behalf of the Defendants. Thereafter, this Claimant closed his case whereupon his Counsel was granted 14 days to file his final written address. Consequently, on the 8/7/2019 the Claimant’s Counsel, G.O Aigbomian, adopted his final written address of 1/7/2019. Thereafter, this case was adjourned to today, 16/7/2019, for judgment.

CLAIMANT’S FINAL ADDRESS AND SUBMISSIONS:

In the address filed on behalf of this Claimant, his Counsel raised three issues for determination thus:

Whether the Defendants have the legal right to suspend the Claimant without following due process and the rule of law?
Whether the Defendants have the right to withhold the Claimant’s salaries and allowances whereas the Defendants made monthly and yearly budgets for same? and
Whether the Claimant upon preponderance of evidence before this Court has proven his case to grant the reliefs sought by this Court?

On issue one above, the Claimant’s Counsel is convinced the Defendants failed to comply with due process and rule of law in the manner the Claimant was suspended and subsequently terminated as a Senior Staff on permanent appointment with the Defendants’ institution. It is argued that it is indisputable the appointment of the Claimant is governed by the University Act, Rules and regulations of the Michael Okpara University of Agriculture and the Conditions of Service for Senior Staff, 2015. Any discipline, promotion or termination of his appointment is supposedly meant to be in accordance with that instrument. The Defendant, who with impunity and without recourse to due process and the rule of law, had accordingly unlawfully terminated this Claimant’s appointment with the 1^st Defendant institute as such it is necessary for this Court to hold that the employment is statutory and therefore should not have been terminated in the manner the Defendants did. He cited IMOLOANE V WAEC (citation supplied) to buttress his arguments on this issue.

On issue number two, learned Counsel referred to the staff nominal roll for 2018 tendered as Exhibit C 4 which contains the salaries of all staff of the institute including the Claimant’s. According to his Counsel, the Defendants have been collecting and using the Claimant’s monthly salaries and allowances since his suspension of his permanent appointment for which budget was passed and implemented. Accordingly, the Counsel want this Court to accept the evidence that before the Claimant was suspended, he was owed arrears of salaries and allowances from March, 2016 to August, 2017. He was equally denied half of his salary when he was placed under suspension despite the fact that full implementation of his salaries are contained in the Defendants’ 2017/18 Budgets. Counsel said that the Defendants were given due notice to produce the memo from the 3^rd Defendant’s office dated 19/1/2018 titled “2017 Budget Implementation Report” which accordingly captures all the staff names and pay roll including that of the Claimants. As such, in the absence of this, the Claimant relied on a copy of the same staff roll and from there was able to calculate what he is duly owed as the amount claimed in this suit. He urged this court to grant the relief to the Claimant.

On issue three, the Clamant’s Counsel is further convinced that giving all the evidence adduced on his behalf, the Claimant has succeeded in proving his case upon a preponderance of evidence more so since the Defendants did not bother to challenge his claims. In the absence of any evidence in the contrary therefore, the Claimant should be granted all his reliefs as sought. He impressed on this Court to enter judgment on behalf of his client.

COURT DECISION:

Having gone through and considered the processes, testimony, and evidence produced on behalf of the Claimant’s cause, I find that only one issue calls for determination in this cause which is “whether the Claimant is entitled to the reliefs sought”. In considering this sole issue, this Court shall also be able to answer some of the questions raised in the Claimant’s final address.

First of all, the Claimant’s employment with the Defendants is one that is governed by statute which means it enjoys the protection of the law that establishes the 1^st Defendant institution. His Contract of employment – Exhibit C1 dated 19/2/2016, specifically provides the mode of termination of his appointment which is by a 3 month’s notice in writing by either party. However, on the 15/8/2017 a letter titled “Suspension of offer of permanent appointment” – Exhibit C 3, was written to the Claimant stating that his appointment was suspended until further notice for failing to follow due process with regards to his appointment into the university with effect from 16/8/2017. This suspension was never followed up with any other offer of re appointment or a formal termination letter in accordance with the contract entered upon through Exhibit C1. It is important to state that parties are bound by their contracts and the instrument which primarily created the contract between the Claimant and these Defendants is undoubtedly, Exhibit C1.

Being an employment with statutory flavor therefore, the Defendants must follow all due procedures laid down in the MOUAU Conditions of Service 2005 which is applicable as at the time of this Claimant’s appointment in 2016.

Secondly, the Claimant was never issued with any termination letter from the 1^st Defendant institution. The letter of suspension – Exhibit C3, was never followed up with any letter determining the Claimant’s employment in accordance with the conditions of service of senior staff of that university and Exhibit C1. In fact, having not bothered to challenge this suit, the Defendants have shown that they are poised to act with impunity particularly with respect to the mode in which this Claimant was unlawfully treated. The suspension of offer of permanent letter dated 15/8/2017 shall at best, be treated as an illegal constructive termination letter. This is because it suspended the employment of the Claimant indefinitely with effect from 16/8/2017, a day after it was written. Consequently, I must hold that the letter dated 15/8/2017 did not validly terminate the employment of this Claimant. As such, his employment was indeed and in fact, unlawfully determined. This is also owing to the fact that it has been held in numerous cases that the payment of salary in lieu of notice of termination must be paid at the same time the letter terminating the employment is given to an employee. See Chukwuma v S.P.D.C. (1993) 4 NWLR (pt 289) 536-7.

The length of notice required before this Claimant’s termination of his employment can be effective is a three month’s notice. It flows logically that where such notice is not given, three month’s salaries must ordinarily be paid in lieu of the notice. There is however no prove that this Claimant was paid his three month’s salaries indicating that the Defendants were no longer interested in his services. Based on this, I am satisfied that this Claimant is entitled to the arrears or salaries from 16/8/2017 to date at his last known and paid salary.

Lastly on what remedy shall be granted to this Claimant, where an employment with statutory flavor is found to have been unlawfully determined, the only order to make by the Court is an order of reinstatement — See MALIKI V MICHAEL IMODU INSTITUTE FOR LABOUR STUDIES (2008) LPELR-8467(CA) where the Court of Appeal held as follows:

“…the only recognized method of terminating an appointment with statutory flavour is by compliance with the procedure laid down in the Constitutive Act of the agency in question. Where there is a breach, particularly, a breach of the inveterate principles of fair hearing, the court will intervene. It will void the unlawful act and order the re-instatement of the victim of the capricious exercise of power. The cases on this point are legion…Indeed, in Olaniyan v UNILAG (supra) Karibi-Whyte JSC, made far-reaching pronouncements on the propriety of a declaratory relief for the re-instatement of an unlawfully dismissed employee. Hear him: The law has arrived at a stage where the principle should be adopted that the right to a job is analogous to a property. Accordingly, where a man is entitled to a particular job, I can not conceive of any juridical reason against the view that where the termination is invalid and consequently alters nothing, a re-instatement of the employee, barring legal obstacles intervening between the period of purported dismissal and the date of judgment, is the only remedy.” Per NWEZE, J.C.A (P.15, Paras.B-G)

Consequently, I find that the Claimant has made out his case and is thus entitled to the following reliefs:

An order setting aside the unlawful and purported letter of suspension of offer of permanent appointment of the Claimant’s employment with the 1^st Defendant ref. MOUAU/R/PASM/SS/2876/Vol. 1 dated 15/8/2017.

An order of mandatory injunction compelling the Defendants to reinstate and restore the Claimant to his position as Assistant Lecturer in the Department of Banking and Finance of the 1^st Defendant with immediate effect.

The Claimant’s arrears of salaries and allowances owed by the 1^st Defendant from the date of his indefinite suspension from his employment to date calculable and payable within one month of this here judgment which shall in default attract 10% interest per month.

An order of perpetual injunction restraining the Defendants, their agents, privies, and servants from further suspending or terminating or compulsorily retiring or tampering with the Claimant’s appointment/employment with the 1^st Defendant on account of this suit.